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What Is 'Non-Binary' Gender? Is It Recognized Legally?

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By Christopher Coble, Esq. on November 18, 2016 6:00 AM

Despite the fact that the choice of gender on official or legal documents is almost always limited to two choices, male or female, many people feel they don't fully belong on either end of the spectrum, but somewhere in the middle. One of those is Jaime Shupe, who was born with male genitalia but identifies as female, and feels more like "a third sex."

Fortunately for Jaime and others, courts and state and federal administrative offices are catching up with the evolving definitions of gender identity. In June, an Oregon judge granted a petition to change Jaime's gender from female to "non-binary."

Gender Positive

"I was assigned male at birth due to biology," Shupe told the Oregonian. "I'm stuck with that for life. My gender identity is definitely feminine. My gender identity has never been male, but I feel like I have to own up to my male biology. Being non-binary allows me to do that. I'm a mixture of both. I consider myself as a third sex."

While some cities and states permit residents to abstain from declaring a gender for IDs, transgender rights advocates believe this is the first case in the U.S. where a person was able to declare their gender as non-binary. The Oregonian reports that a court in France allowed a resident to register as gender neutral in a ruling last year. Despite Multnomah County Circuit Court Judge Amy Holmes Hehn's ruling in Shupe's case, however, Oregonians are still unable to elect "non-binary" on their driver's licenses or state-issued ID cards.

Level of Proof

In some states, courts will require a sworn affidavit or evidence that a petitioner has "undergone clinically appropriate treatment for change of gender" before granting a change of gender on a driver's license, social security card, or passport, or to issue a new birth certificate. And in a few states, petitioners must submit proof that their sex has been changed by surgical procedure.

Those requirements aren't as stringent in Oregon, where residents don't even need a note from a doctor to prove they've undergone surgical, hormonal, or other treatment related to a gender transition. Judge Hehn ruled "[t]he sexual reassignment has been completed," she wrote. "No person has shown cause why the requested General Judgment should not be granted." Whether Shupe's case remains an outlier or signals a change in the legal requirements for official gender identity designations remains to be seen.

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